Filed 4/1 6/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. JAMES GALVAN, Defendant and Appellant. G049764
(Super. Ct. No. 95SF0237)

O P I N I O N

Appeal from a n order of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed.

Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Ha rris, Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.2 Defendant James Galvan appeals from the dismissal of his petition for
resentenci ng under Penal Code section 1170.126 (all further undesignated statutory references are to this code)

. He argues the trial court erred in ruling he was ineligible for resentencing under section 1170.126 because the crime for which he was given the
indeter minate life sentence

– assault with a firearm

– was not considered a serious or violent felony at the time of the final judgment on his conviction, and thus it cannot be treated as such for purposes of evaluating his present eligibility for resentencing. He also claims that the separate finding that he committed his crime while armed with a firearm cannot be relied upon as a basis for denying him resentencing because h is sentence on that finding was stayed pursuant to section 654, and consequently his curr ent sentence

“ was not imposed ” for an offense appearing in section 667, subdivision (e) (2)(C)(iii) or section 1170.12 , subdivision (c )(2)(C)( iii ).

The Attorney General ’ s initial response is to claim the dismissal is not an appealable order because it does not affect defendant ’ s “‘ substantial rights. ’” Although
this may have been an arguable assertion when the Attorney General ’ s brief was filed, our Supreme Court has since rejected it and concluded such dismissals are appealable. ( Teal v. Superior Court ( 2014) 60 Cal.4th 595.)

The issue of whether the classification of an inmate’s prior conviction must be determined as of the time his judgment of conviction became final, rather than under the sentencing law in effect when section 1170.126 was enacted, is currently pending before the Supreme Court. ( Braziel v. Superior Court , review granted July 30, 2014 , S218503 .) However, as the c ourt ha s not yet issued an opinion resolving the issue, we
address it here and r eject defendant ’ s contention

. Section 1170.1 26, subdivision (e) sets forth the specific eligibility requirements for resentencing under the statute. Among other things, it states that an eligible inmate is one who is serving an indeterminate sentence for a felony or felonies “ that are not defined a s serious and/or violent felonies3

by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7. ” (§ 1170.126, subd. (e)(1) , italics added.) This present tense reference to the statutes defining which felonies qualify as “ serious ” or “ violent ” makes clear that the pertinent classification for purposes of establishing eligibility for resentencing was based on current law in existence
when section 1170.126 went into effect

. And e ven assuming the alternative language relied upon by defendant, tak en from subdivision (a) of section 1170.126, could be read as supporting a different interpretation of eligibility, we would disregard it under the
well

- settled rule that in the case of inconsistency between statutory provisions, the more specific provisio n controls over the more general one. Under a proper reading of section 1170.126, defendant is ineligible for resentencing because his conviction for assault with a firearm qualifies as a serious felony for purposes of that statute . Hence, the trial cour t properly dismissed his petition and we affirm its order.

FACTS

Defendant was convicted of assault with a firearm ( § 245, subd. (a)(2)) , and related allegations that he used a firearm in the commission of the offense and inflicted great bodily injury were also found true. The court found that defendant had committed three prior felonies and sentenced him to a n indeterminate term of 25 years to life, plus
an additional five

- year term pursuant to section 667, subd ivision (a) (1) , which applies to

“ any p erson convicted of a serious felony who previously has been convicted of a serious felony. ” He was also sentenced to a one

- year concurrent sentence for the use of a firearm
in the commission of his offense.

In 1997, we affirmed that conviction on appeal, but struck the five

- year sentence enhancement. ( People v. Galvan and Alijo ( Sept. 30, 1997 , G019403 )4

[nonpub.opn.] .) We explained that at that time, defendant ’ s “ present offense . . . is not a

‘ serious felony. ’” ( Id. at p. 7.)

However, as defendant ac knowledges, the law changed in 2000 when the voters passed Proposition 21, mandating that the crime of assault with a firearm be
reclassified as a “ serious ” felony under section 1192.7, subdivision (c) , without regard to
a defendant ’ s personal use of the w eapon

. ( People v. Myers (2007) 148 Cal.App.4th 546, 554.) In 1999, the court, via a stipulated nunc pro tunc order, vacated defendant ’ s
concurrent one

- year term for the use of a firearm and ordered that sentence stayed under
section 654. On September 23 , 2013, defendant petitioned for recall of his indeterminate life sentence based on section 1170.126. In his petition, he noted that while the crime of assault with a firearm is now considered a serious felony under section 1 192.7, this court had previous ly found that hi s conviction for that crime did not qualify as such in this

case. The prosecutor moved to dismiss defendant ’ s petition, arguing defendant was legally ineligible for recall of his sentence under section 1170.126 for two reasons: (1) becaus e the offense for which he is serving his indeterminate life sentence is classified as a serious felony (§ 1170.126, subd. (e)(1)) ; and (2) because he was found to
be “ armed with a firearm ” during the commission of that offense

. ( §§ 1170.126, subd. (e)(2) , 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii) .)

Defendant opposed the motion to dismiss, claiming the determination of whether his offense qualified as “ serious ” for purposes of section 1170.126 must be made
as of the time of his final judgme nt of conviction , rather than in accordance with how the
crime is classifi ed under current law. He relied on the doctrine of law of the case to5

argue that this court ’ s earlier determination his conviction did not qualify as a “ serious ” offense was binding for purposes of his petition.

Defendant also argued that the past perfect subjunctive tense employed in subdivision (a) of section 1170.126 , which states the remedy is “ i n tended to apply to exclusively to persons . . . whose sentence under this act would not have been an indeterminate life sentence ” (italics added), reflects an intention to apply the remedy retroactively , in the context of w hatever other law s w ere in effect at the time of a defendant ’ s original sentencing, even if th e former law s are inco nsistent with the current

statutes expressly incorporated into the provisions of section 1170.126.

The trial court dismissed the petition.

DISCUSSION

1. The Resentencing law

Section 1170.126 was enacted by voter initiative in 2012, as part of the
Thre e Strikes Reform Act. ( Voter Information Guide, Gen. Elec. (Nov. 6, 2012) text of Prop. 36, § 6, pp. 109

- 110 (hereafter Voter Information Guide)

. ) Among the stated purposes of the initiative, as explained to voters, was to “ [r]estore the Three Strikes la w to the public ’ s original understanding by requiring life sentences only when a defendant ’ s current conviction is for a violent or serious crime ” and to “ [m]aintain that repeat
offenders convicted of non

- violent, non

- serious crimes like shoplifting and si mple drug possession will receive twice the normal sentence instead of a life sentence. ” ( Id. § 6, at p. 106, italics added .)

In accordance with those goals, section 1170.126 provides persons who

were previously sentenced to indeterminate life terms und er an earlier version of the

“ Three Strikes ” law the opportunity to petition for resentencing to the term that would6

have been imposed for their crime under the version of the Three Strikes Reform Act passed by the voters in the form of Proposition 36

. Th us, section 1170.126, subdivision (a) states that it is intended to apply only to those “ persons presently serving an indeterminate term of imprisonment . . . whose sentence under this act would not have
been an indeterminate life sentence. ” (Italics adde d.) Subdivision (b) of section
1170.126 states that “ [ a ] ny person serving an indeterminate term of life imprisonment imposed pursuant to [the Three Strikes law] upon conviction

. . . of a felony or felonies
that are not defined as serious and/or violent . . . may file a petition for a recall of

sentence. ” (Italics added.)

Subdivision (e) of section 1170.126 further specifies which defendants are eligible for resentencing under the statute. The first requirement is that “ [t]he inmate is serving an indete rminate term of life imprisonment imposed pursuant to [the Three Strikes law] for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7. (§ 117 0.126, subd. (e)(1), italics added.)

The second requirement is that “ [t]he inmate ’ s current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 6 67 or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12. ” (§ 1170.126, subd. (e)(2).)

And the third requirement is that “ [t]he inmate has no prior convictions for any of the offenses appearing in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Section 1170.12. ” (§ 1170.126, subd. (e)(3).)7

2 . Law of the Case Doctrine

Defendant first con tends that pursuant to the law of the case doctrine, this

court ’ s earlier determination that his conviction for assault with a firearm did not qualify

as a “ serious ” felony was binding on the trial court for purposes of evaluating his eligibility for resen tencing under section 1170.126. His contention is incorrect.

The law of the case doctrine provides “ that w here an appellate court states a rule of law necessary to its decision, such rule ‘“ must be adhered to ” ’ in any ‘“ subsequent appeal ” ’ in the same ca se, even where the former decision appears to be ‘“ erroneous. ” ’” ( People v. Whitt (1990) 51 Cal.3d 620, 638 .) Thus, the law

- of

- the

- case doctrine

“ prevents the parties from seeking appellate reconsideration of an already decided issue
in the same case abs ent some significant change in circumstances. ” ( I bi d. ) However,

“ [t] he principal ground for making an exception to the doctrine of law of the case is an intervening or contemporaneous change in the law. ” ( Clemente v. California (1985) 40 Cal.3d 202, 212 .)

That is what has occurred in this case. W hile defendant ’ s conviction for
assault with a firearm was not classified as a “ serious ” felony at the time he was
sentenced for it or when we affirmed th e judgment , he acknowledges the law has since changed. Under th e se circumstances, t he doctrine of law of the case does not bind the trial court to our prior determination of the issue.

3. The Language of the Statute

Defendant also contends the language of the statute itself requires that his eligibility fo r resentencing must be considered in accordance with the laws in existence at the time his judgment of conviction became final. And because his conviction for assault with a firearm was not considered a serious felony at that time , he believes the trial c ourt8

was required to treat it as a nonserious felony for purposes of assessing his eligibility for resentencing under section 1170.126.

Defendant bases this assertion on the fact that subdivision (a) of section 1170.126 employs the past perfect subjunctiv e tense in stating that the resentencing remedy is “ intended to apply exclusively to persons . . . whose sentence under this act
would not have been an indeterminate life sentence

. ” ( I talics added

. ) He believes this grammatical structure reflects an inte ntion to apply the remedy retroactively , in the
context of whatever other laws were in effect at the time of a defendant ’ s original sentencing, even if the former laws are inconsistent with the current statutes expressly incorporated into the provisions of section 1170.126. We disagree.

First, defendant ’ s argument ignores the fact that the language he quotes specifies that the relevant test is whether a defendant ’ s sentence “ would not have been ”

an indeterminate life term “ under this act

. ” (§ 1170.126, s ubd.(a), italics added.) The
referenced “ act ” is the Three Strikes Reform Act, passed by the voters as Proposition 36.
That act included revisions to both sections 667 ( Voter Information Guide , supra, text of Prop. 36, § 2 ) and 1170.12 ( Voter Information Guid e , supra, text of Prop . 36 , § 4)

. Thus,
the “ act ” incorporates those sections as modified by the passage of Prop osition 36 in November 2012. So even under subdivision (a) of section 170.126, only a defendant who
would not have been given an indeterm inate life sentence under the provisions of sections 667 and 1170.12 as they existed in November 2012 is eligible for relief. Defendant does
not meet this test because his offense

– assault with a firearm

– was classified at that time as a serious felony under section 11 92.7 , subdivision ( c )( 3 1)

.

But even if we agreed that subdivision (a) of section 1170.126 could be

r ead in the way defendant wishes, we would still reject his argument on the basis that the general rule of applicability stated in that su bdivision is inconsistent with the more specific provisions of subdivision (e), which govern a defendant ’ s “ eligibility ” for9

resentencing. “ [A] specific statutory provision relating to a particular subject controls over a more general provision. That rul e obtains even though the general provision standing alone is sufficiently broad to include the subject to which the specific statute
relates. ” ( Hughes Electronics Corp. v. Citibank Delaware (2004) 120 Cal.App.4th 251 , 270; see Civ. Code, § 3534 [ “ P articu lar expressions qualify those which are general ” ].)

Among other requirements, subdivision (e) (1) of section 1170.126 specifies
that an inmate eligible for resentencing is one who is serving an indeterminate sentence
for “ a felony or felonies that are no t defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7. ” (Italics added.)
This present tense reference to the statutes defining which felonies qualify as “ serious ” or

“ violent ” makes clear th at the pertinent classification for purposes of establishing eligibility for resentencing was to be taken from the current law. If the law were
intended to extend the same remedy to those defendants whose felonies were not defined
as serious or violent at the time of their convictions , it could easily have defined eligibility in those terms. It did not.

Moreover, i nterpreting section 1170.12 6 as affording a remedy to only
those defendants whose relevant felonies qualified as nonserious and nonviolent as of the time Proposition 36 was passed is consistent with the purposes of the proposition as described to the electorate. As we have already noted, the goals of the Proposition
included “ [r]estor[ing] the Three Strikes law to the public ’ s original underst anding by requiring life sentences only when a defendant ’ s current conviction is for a violent or
serious crime

. ” ( Voter Information Guide , supra, text of Prop. 36, § 1, p. 105, italics added.) And as defendant himself has conceded, his conviction for as sault with a firearm met that description as of the time the electorate voted.

We agree with the Attorney General ’ s assertion that section 1 170.125, also passed as part of Prop osition 36 ( Voter Information Guide , supra, text of Prop. 36, § 5) ,10

supports this result. That statute specifies, in pertinent part , that “ for all offenses
committed on or after November 7, 2012 , all references to existing statutes in Sections
1170.12 and 1170.126 are to those sections as they existed November 7, 2012. ” ( Some
i ta lics added.) The obvious purpose of this provision is to ensure that the rights of defendants to be sentenced in accordance with Prop osition 36 will be preserved exactly as they existed on the date it went into effect . And while defendant responds that t his language actually supports his position because section 1170.125 makes no reference to
offenses committed before November 7, 2012, his argument is unpersuasive. There was no reason to pass a separate statute specifying how section 1170.126 would apply to prior offenses. As we have already explained, that rule is encompassed within the language of
the statute itself. Section 1170.125 simply ensures the same parameters will pertain for
offenses into the future.

Finally, we note that a significant pro blem with defendant ’ s interpretation
of section 1170.126 is that it would require the courts to treat two similarly situated
defendants

– each of whom was convicted of the identical offense of assault with a firearm

– differently, depending upon whe ther th at offense was c ommitted in 1999 or in 2000, just after the offense was reclassified as a “ serious ” felony

. The 1999 offender would be eligible for resentencing, while the 2000 offender would not. There is nothing in either the language of the section 11 70.126 or the expressed goals of Prop osition 36, which would support such an arbitrary distinction or suggest that the electorate could have intended to impose it

.

In light of our conclusion that defendant was ineligible for resentencing
under section 117 0.126 on the basis that his conviction for assault with a firearm qualifies as a “serious” felony under the statute, we need not reach the additional issue of whether he was also ineligible based upon the separate factual finding that a firearm was used in
the commission of the offense.11 DISPOSITION

The order dismissing defendant’s petition is affirmed.
CERTIFIED FOR PUBLICATION

RYLAARSDAM, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.